Madras High Court
R.Arunachaleswaran vs The Additional Chief Secretary To ... on 6 June, 2019
Author: M.M.Sundresh
Bench: M.M.Sundresh, M.Nirmal Kumar
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.06.2019
Coram
The Hon'ble Mr. Justice M.M.SUNDRESH
and
The Hon'ble Mr. Justice M.NIRMAL KUMAR
H.C.P.No. 132 of 2019
R.Arunachaleswaran .. Petitioner
Vs
1.The Additional Chief Secretary to Government
Home, Prohibition and Excise Department,
Secretariat, Chennai – 600 009.
2.The Commissioner of Police,
Greater Chennai, Vepery,
Chennai – 600 007. .. Respondents
Petition filed under Article 226 of the Constitution of India
praying for a writ of habeas corpus, to call for the records in
connection with the order of detention passed by the 2nd respondent
dated 21.12.2018 in Memo No.1153/BCDFGISSSV/2018, against the
petitioner's friend Bazul @ Pathri Bazul, son of Ahamed Basha, aged
about 31 years, who is confined at Central Prison, Puzhal, Chennai and
set aside the same and direct the respondents to produce the detenu
before this Hon'ble Court and set him at liberty.
http://www.judis.nic.in
2
For Petitioner : Mr.V.Paarthiban
For Respondents Mr.R.Prathap Kumar
:
Addl. Public Prosecutor
ORDER
(Order of the Court was made by M.M.SUNDRESH, J.) The petitioner is the friend of Bazul @ Pathri Bazul, S/o.Ahamed Basha , aged 31 years, who is the detenu. The detenu has been detained by the second respondent by his order Memo No.1153/BCDFGISSSV/2018 dated 21.12.2018, holding him to be a "GOONDA", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.
2. We have heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents. We have also perused the records produced by the Detaining Authority.
3. Though several grounds have been raised in the Habeas http://www.judis.nic.in 3 Corpus Petition, the learned counsel appearing for the petitioner would mainly focus his argument on the ground that there is gross violation of procedural safeguards, which would vitiate the detention. The learned counsel, by placing authorities, submitted that the representation made by the petitioner was not considered on time and there was an inordinate and unexplained delay.
4. The learned Additional Public Prosecutor opposed the Habeas Corpus Petition. He would submit that though there was delay in considering the representation, on that score alone, the impugned detention order cannot be quashed. According to the learned Additional Public Prosecutor, no prejudice has been caused to the detenu and thus, there is no violation of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India.
5. The Detention Order in question was passed on 21.12.2018. The petitioner made a representation on 29.12.2018. Thereafter, remarks were called for by the Government from the Detaining Authority on 11.01.2019. The remarks were duly received on 24.01.2019. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on http://www.judis.nic.in 4 07.02.2019.
6. It is the contention of the petitioner that there was a delay of 13 days in submitting the remarks by the Detaining Authority, of which 8 days were Government Holidays and hence there was an inordinate delay of 5 days in submitting the remarks.
7. In Rekha vs. State of Tamil Nadu (2011 (5) SCC 244), the Hon'ble Supreme Court has held that the procedural safeguards are required to be zealously watched and enforced by the Courts of law and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities undertaken by the detenu.
8. In Sumaiya vs. The Secretary to Government (2007 (2) MWN (Cr.) 145), a Division Bench of this Court has held that the unexplained delay of three days in disposal of the representation made on behalf of the detenu would be sufficient to set aside the order of detention.
9. In Tara Chand vs. State of Rajasthan and others, reported in (1980) 2 SCC 321, the Hon'ble Supreme Court has held http://www.judis.nic.in 5 that any inordinate and unexplained delay on the part of the Government in considering the representation renders the very detention illegal.
10. In the subject case, admittedly, there is an inordinate and unexplained delay of 6 days in submitting the remarks by the Detaining Authority. The impugned detention order is, therefore, liable to be quashed.
11. In the result, the Habeas Corpus Petition is allowed and the order of detention in Memo No.1153/BCDFGISSSV/2018 dated 21.12.2018, passed by the second respondent is set aside. The detenu, namely, Bazul @ Pathri Bazul, S/o.Ahamed Basha, aged 31 years, is directed to be released forthwith unless his detention is required in connection with any other case.
(M.M.S.J.,) (M.N.K.J.,) 06.06.2019 Index:Yes/No mmi/ssm http://www.judis.nic.in 6 To:-
1.The Additional Chief Secretary to Government Home, Prohibition and Excise Department, Secretariat, Chennai – 600 009.
2.The Commissioner of Police, Greater Chennai, Vepery, Chennai – 600 007.
3.The Public Prosecutor, High Court, Madras.
4.The Superintendent Central Prison, Puzhal, Chennai.
http://www.judis.nic.in 7 M.M.SUNDRESH, J.
and M.NIRMAL KUMAR, J.
(mmi/ssm) H.C.P.No. 132 of 2019 06.06.2019 http://www.judis.nic.in